Case T-340/09: Action brought on 19 August 2009 — Evropaïki Dynamiki v Publications Office of the European Union
Date: 2009-08-19
Institutions: Court of First Instance
Subjects: Publications Office of the European Union, action for annulment (EU), award of contract, equal treatment, invitation to tender, provision of services








C_2009267EN.01007302.xml










7.11.2009   


EN


Official Journal of the European Union


C 267/73





Action brought on 19 August 2009 — Evropaïki Dynamiki v Publications Office of the European Union
(Case T-340/09)
2009/C 267/133
Language of the case: English

Parties


Applicant: Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE (Athènes, Greece) (represented by: N. Korogiannakis and M. Dermitzakis, lawyers)

Defendant: Publications Office of the European Union

Form of order sought







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Annul the OPOCE’s decision to reject the bids of the applicant, filed in response to the open call for tenders No 10017 “CORDIS” Lot B “Editorial and Publishing Services” and Lot C “Provision of New Digital Information Services” and to select the bid of the applicant filed in response to the open call for tenders No 10017 “CORDIS” Lot E “Development and Maintenance of Core Services”, for the award of the above procurement contract as third contractor in the cascade mechanism (OJ 2008/S 242-321376 as amended by OJ 2009/S 40-057377), communicated to the applicant by a letter dated 9 June 2009 and all further related decisions of the OPOCE including the one to award the respective contracts to the successful contractors;










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order the OPOCE to pay the applicant’s damages suffered on account of the tendering procedure in question for an amount of EUR 7 215 405 (EUR 5 291 935 for Lot B, EUR 975 000 for Lot C and EUR 948 470 for Lot E);










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order the OPOCE to pay the applicant’s legal and other costs and expenses incurred in connection with this application, even if the current application is rejected.





Pleas in law and main arguments

By means of this application the applicant seeks the annulment of the decision of OPOCE to: a) reject the bids of the applicant, filed in response to the open call for tenders No 10017 “CORDIS” Lot B “Editorial and Publishing Services” and Lot C “Provision of New Digital Information Services”, b) select the bid of the applicant filed in response to the open call for tenders No 10017 “CORDIS” Lot E “Development and Maintenance of Core Services”, for the award of the above procurement contract as third contractor in the cascade mechanism (OJ 2008/S 242-321376 as amended by OJ 2009/S 40-057377).
The applicant claims, first, concerning Lot B, that the treatment between tenderers was discriminatory, since one of the members of the winning consortium did not comply with the exclusion criteria and should, accordingly, have been found to be in serious breach of its contractual obligations towards the Commission. Moreover, the applicant claims that Articles 93(1)(f) and 94 of the Financial Regulation (1) and the principle of good administration have been infringed by the contracting authority and that the Commission should have imposed sanctions provided for by Article 96 of the Financial Regulation and Articles 133a and 134b of its Implementing Rules (2).
Second, the applicant claims that the contracting authority has failed to disclose the relative merits of the successful tenderer.
Third, the applicant submits that the Commission has made several manifest errors of assessment while evaluating its tender and submits that it has infringed the principle of equal treatment while introducing new award criteria not specified in the Tender Specifications (“TS”). Furthermore, the applicant contends that the contracting authority infringed Article 148(1) and (3) of the Implementing Rules, as well as the principle of good administration.
Concerning Lot C, the applicant submits that the treatment between tenderers was discriminatory since one of the members of the third in the cascade mechanism consortium did not comply with the exclusion criteria and should have been found to be in serious breach of previous contracts. Secondly, the applicant claims that the contracting authority has failed to disclose the relative merits of the successful tenderer and has infringed the Principle of good administration.
Concerning Lot E, the applicant argues that one of the members of the winning consortium did not comply with the exclusion criteria because it should have been declared in serious breach of a previous contract and that another one of the members of the same consortium should have been excluded from all tenders for two years because it was found guilty for illegal activities. Moreover, the applicant contends that one of the members of the winning consortium uses non WTO/GPA (3) contractors, infringing the TS of the call for tenders, the principles of transparency and of non discrimination, as well as Articles 106 and 107 of the Financial Regulation. The applicant contends that non WTO/GPA member companies should neither be allowed, nor participate to European Institutions’ Call for tenders directly or indirectly, nor undertake as a subcontractor any work falling under the Financial Regulation or Directive 2004/18/EC (4).
Finally, the applicant claims that the contracting authority failed to state reasons conducted several manifest errors of assessment, introduced new award criteria not specified in the TS and infringed while evaluating its tender and that of another tenderer the principle of equal treatment.


(1)  Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 248, p. 1)

(2)  Commission Regulation (EC, Euratom) No 2342/2002 of 23 December 2002 laying down detailed rules for the implementation of Council Regulation (EC, Euratom) No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities, as amended by Commission Regulation (EC,Euratom) No 478/2007 of 23 April 2007 (OJ 2007 L 111, p. 13)

(3)  Multilateral Agreement on Government Procurement concluded within the World Trade Organisation

(4)  Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ 2004 L 134, p. 114)